Friday, June 10, 2011

Beaty's Levicy Dilemma

More than five years after rogue ex-DA Mike Nifong and his subordinates in the DPD obtained indictments, the discovery process has begun in the civil suits. Ironically, however, only some of the Duke defendants are currently subject to that discovery.

The reason? Durham is appealing Judge Beaty’s ruling allowing the lawsuit to proceed, on the grounds that the city has governmental immunity against the lacrosse players’ claims. In other words: the city can violate its own procedures to frame innocent citizens, and should have no civil liability for its actions.

Very broadly reading the terms of the 2009 Ashcroft v. Iqbal decision, and citing a host of other cases of which the only absolutely on-point was a 2002 holding from the Middle District of Alabama that obviously isn’t binding precedent in North Carolina, Judge Beaty granted Durham’s request to delay discovery for (at the very least) many months, as Durham’s longshot appeal winds its way through the federal court system.

On the surface, Durham’s legal strategy makes no sense, especially given its political leaders’ constantly complaining about the cost of the lawsuit to them. But at a practical level, the Durham approach is unsurprising. First, the more time that elapses before discovery, the more opportunity for the DPD to “lose” evidence, or for DPD officers to claim that they don’t recall what happened in spring 2006. Perhaps more important, dragging the case out for as long as possible means that the political enablers of the hoax (such as Diane Catotti, the Nifong-supporting city councilor who strove mightily to neuter the commission intended to investigate the DPD) will get more time before having to justify their conduct to the electorate.

One element of Beaty’s discovery order, however, provides some insight into how he (at this very preliminary stage) views the case. In his rulings on the motion to dismiss, Beaty dismissed claims of malpractice against Duke and former SANE nurse-in-training Tara Levicy on the grounds that Levicy had no legal obligations relating to care to the public. (Her only legal obligations in this regard, Beaty asserted, were to false accuser Crystal Mangum.) This finding struck me as odd, since Levicy’s primary role in this case was not to provide medical care of any type to Mangum, but rather to gather evidence and offer analysis that the state might use in any prosecution.

In his discovery order, Beaty backtracked—at least intellectually—from this finding, and has now decided to lump Levicy in with the Durham defendants. The allegations against Levicy, he wrote, are "so intertwined with the claims against the city” that no discovery relating to Levicy or Duke Hospital can proceed.

In the short term, this finding is a tremendous victory for Duke: if Durham succeeds in its longshot appeal, and either the 4th Circuit or the Supreme Court holds that qualified immunity applies even when city employees attempt to frame innocent people, then Tara Levicy or records relating to her dubious conduct will never face the plaintiffs’ attorneys.

In the long term, however, this finding poses terrific risks for Duke, since Beaty appears to be conceding that the allegations on the table (before, it’s worth reiterating, any discovery has occurred) demonstrate that a Duke employee was inextricably “intertwined” with the hoax. If he’s consistent with that finding, it will be much harder down the road for Duke to separate itself from the misconduct of Durham employees.

It's not going to be one Duke employee that was inextricably “intertwined” with the hoax. We will learn eventually that it was many Duke employees and students. Especially low level Duke staff members.

And I have no idea how Duke will recover from that revelation.

Perhaps in several years Duke will shut down Trinity College and start over again with faculty and staff members who are actually sane. Or perhaps Duke - China will be up and running and the Durham campus will be irrelevant.

But until then the State of North Carolina and the City of Durham will do most anything to de-rail the discovery process and keep the truth from the public and especially the Duke alumni. ::GP

While Judge Beaty delayed discovery for Durham-related defendants, discovery will go forward for the other Duke defendants.

I think this is a case of the glass being half full rather than half empty.

The attempted frame-up was a conspiracy with many interactions between Duke and Durham defendants.By getting documents and depositions from Duke defendants, the lawyers for the lacrosse players will get information valuable for deposing the Durham defendants when their futile appeal is denied. The whole case is a house of cards-- take one away and the attempt to hide the conspiracy fails.

Your point about Judge Beaty's about face concerning Levicy is well-taken. While the strategy of the defendants is to delay, deny and confuse, eventually the truth will come out.

Great point about the role of Levicy, Professor Johnson! She does have a duty to act as a nurse for her patients -- just not in this case as Mangum had only imaginary complaints -- but she is a SANE nurse for a reason, and with the title come extra responsibilities and extra duties.

At a minimum, Levicy and all SANEs act as quasi-law enforcement officials. They have a duty to extract evidence. To say that the duty to extract is limited to only victims seems to miss half the equation. It would be like saying Mike Nifong only had a duty to protect the rights of the "victim," and we know that that's not what he's on trial for.

Is this one of those instances in which an older Judge -- or even an entire legal system -- hasn't yet "gotten with the times, man"? Also, is this one legal duty a Judge won't dare impose for fear of being thought of as politically correct? Good catch! MOO! Gregory

No matter how long it takes, there are those of us who will not forget, will not be put to sleep by delay, will not be discouraged. We WILL finally, one day, see how Durham and Brodhead danced with the devil, caving to the 88 and put the lives of innocent men on the spit for a good old fashioned liberal BBQ. SANEs clearly have a duty....first and foremost to act professionally and within an ethical framework well documented and well known to any bona fide SANE. Levicy = FAIL.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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